Tag: S114a evidence act

Well, two more media features to be mentioned here. Following from CIJ’s forum “Section 114A Evidence Act: Crime-busting or Online Control?” organised by Centre for Independent Journalism (CIJ), Selangor Times reported the following:-

Writer: Basil Foo
Published: Fri, 15 Jun 2012

KUALA LUMPUR: Internet users whose accounts are hacked into will be presumed guilty for unlawful online posts by the actual perpetrators under recent amendments to the Evidence Act, something that is being criticised as absurd.

He was speaking during the “Section 114A Evidence Act: Crime-busting or Online Control?” forum at the KL-Selangor Chinese Assembly Hall recently.

Foong said laws presuming guilt have always been around, including for individuals who were deemed to be traffickers if they were arrested with a certain amount of drugs.

“The Dangerous Drugs Act (discourages) people from carrying drugs. Will this Act (discourage) people from using the Internet?” he asked.

Center for Independent Journalism (CIJ) director Jac SM Kee said the Act was illogical as victims who sought help after their accounts had been hacked or report the crime to police may find themselves behind bars.

Even if someone else posts an offensive comment on a person’s Facebook wall, the latter could be found guilty.

“Business will be affected. If they provide Wifi (and offensive items are posted through their connection), they are responsible,” said BFM Media Sdn Bhd producer Jeff Sandhu.

He said if restaurants in the city are required by law to provide free Wifi and their Internet connections are open to abuse by irresponsible users, business owners will find themselves caught between a rock and a hard place.

Digital News Asia executive editor A Asohan said the Act put average Internet users at the mercy of tech-savvy users who could abuse the former’s unsecure Internet connections.

He said an analyst from investment firm Mackenzie traced 4.1 per cent of the nation’s Gross Domestic Product (GDP) coming from online activities.

“You want to create a high income nation, this is going to put damper on it. You can’t have an Internet community when people fear to go on the Internet,” he added.

Subsequently, BFM Radio interviewed me to speak about the Evidence Act amendments:-

Lawyer Foong Cheng Leong breaks down the Evidence Act to us, and explains how such regulations affect the ordinary Internet user in the country.

My article “Grave Repercussions for Internet Users” probably has the biggest effect on me. I got my name mentioned in newspaper and online media such The Sun, The Star, Malaysia Insider and Malaysia Today. Now it has gone to another level.

Just few days ago, I was featured in The Malaysian Observer.TV (also known as www.mobtv.my), an internet TV portal and also Malaysiakini.

For our 15th Middle Malaysia podcast, we speak to Foong Cheng Leong, co-chair of the KL Bar IT Committee, about the new amendments to the Evidence Act. It was Foong who first broke the news about the new amendments via an article on the LoyarBurok blog.

He says the article at first didn’t garner much attention. That all changed when theSun published a front-page article based on it. Now, everyone’s talking about the serious implications of the new amendments.

Foong gives a broad overview of what the new law is all about and explains why it should be of grave concern for all those who use the Internet. He also gives his opinion on different social media scenarios where the Evidence Act could be applied.

His concerns, however, are not just on how this new law could affect criminal and politically-charged cases but also civil cases.

Lastly, he gives an example of how this law could affect cases concerning election offences and gives a real-life example of a past case that probably would have turned out very differently had the new law been in place then.

Foong, who often comments about IT issues, is totally against this law and is working towards having it repealed.

The podcast was actually recorded through Skype using my Samsung Series 5 Ultrabook at around 1am. I had to leave for Singapore the next day hence Oon had to accommodate my last night request. The quality of the recording is not bad. My Dad thought it was recorded at a studio!

In the meantime, please sign the petition against the amendment bill here.

Frankly, I’ve never watched or listen to the above interviews. I hate listening to myself. Sometimes I wonder how can people stand my voice. It’s so squeaky.

But my message to all young lawyers out there, if you want to put your name out there, write as much as you can and post them online. The internet will promote it for you.

Subsequent to my LoyarBurok article and feature in The Sun Daily, I was interviewed by The Star newspaper regarding my disapproval to the new evidence amendment act. A short quote was featured in The Star’s article entitled Amendment not justified, say groups. The full article can be read below.

When I was interviewed on the phone, the reporter said that someone may be listening to our conversation. I hope it’s not true.

PETALING JAYA: The amendment to the Evidence Act transfers the burden of proof to the accused, which is contrary to the principle of justice, said lawyers and Internet users.

“At any trial, whether criminal or civil cases, it is up to the prosecutor to prove guilt beyond reasonable doubt. Now the burden will be shifted to the accused to disprove (the allegation against them),” said human rights lawyer Edmund Bon.

He added: “All around the world where there is Internet any reasonable person would be against the posting of hate messages. But whether the Government should step in and take such control is another matter.”

Disputing that the amendment will bring more people to justice, Bon said that it will instead reduce the need for the police and other enforcement agencies to be thorough in their investigations.

He believed that current defamation and sedition laws were enough to curb offensive and criminal messages on the Internet.

Intellectual property lawyer and Kuala Lumpur Bar Information Technology Committee co-chairman Foong Cheng Leong said the amendment would be a source of harassment to people whose identities have been abused to send offensive or threatening messages.

“Say it is an elderly person who subscribes to the Internet and does not know how to secure his wifi account.

“If someone uses that unsecured wifi to upload all these offensive postings, it’s the elderly man who will get into trouble,” he said.

However, he agreed that it was difficult to trace the author of the offensive material, especially when international servers or public computers are used.

“But changing the law is taking the easy way out,” said Foong, who authored an extensive article about the amendment on the Loyar Burok website.

Meanwhile, many have tweeted their disapproval for the amendment, claiming that people would have to “flip over backwards to prove their innocence”.

At the same time, some have voiced their support for the amendment, especially those who have been on the receiving end of hate messages.

“These anonymous writers of hate messages against me are gutless and stupid.

“They help justify the Government’s proposal to amend the Evidence Act,” tweeted lawyer Roger Tan who had been criticised for writing a critique on the recent Malaysian Bar extraordinary general meeting.

You should also read the article below. The table below is a reproduction of a part of my LoyarBurok article.

Cyber bullies and stalkers often get away because of lack of evidence
By REGINA LEE
regina@thestar.com.my

PETALING JAYA: “It wasn’t me.” That’s the most common response from people when a hate or threatening message is traced to their Facebook or Twitter or any other Internet account.

The Malaysian Communications and Multimedia Commission says it is almost legally impossible to take action if all that a person has to do is to deny any responsibility.

“Think of the victims. People who have been slandered or whose lives have been threatened,” commission chairman Datuk Mohamed Sharil Mohamed Tarmizi said, adding that many a time cyber bullies and stalkers who often use “the cloak of anonymity” have got away because of lack of evidence.

“As more of the young are connected online, who is going to watch over these kids when there are real people who want to harm them?” he said in an interview on the amendment to the Evidence Act passed by the Dewan Rakyat last month.

Answering critics who said the amendment was unfair in pushing the burden of proof to the accused, he said that owners of Internet accounts where hate messages had originated could easily rebut charges against them if they were innocent.

“For example, if you can produce witnesses to say that you were nowhere near your computer or any other communicating device at the time the message was sent out, you can get off,” Sharil said.

He added: “It is not easy nailing offenders to the charge. Sometimes you can find evidence and sometimes you can’t.

“At least now (with the amendment), a flat denial (from the accused) cannot work anymore.”

The amendment to Section 114(a) of the Evidence Act includes the following stipulations:

> If your name, photograph or pseudonym appears on any publication depicting yourself as the author, you are deemed to have published the content.

> If a posting comes from your Internet or phone account, you are deemed to be the publisher unless the contrary is proved.

> If you have the control or custody of any computer which published any material, you are presumed to be the publisher unless proven otherwise.

Asked if the amendment infringed on Internet users’ personal liberties, Sharil said the authorities would still have to carry out rigorous and thorough investigations before charging anyone.

“Then there is the trial processs to go through,” he added.

He admitted that the conviction rate of suspected cyber offenders was very low.

From 2009 to 2011, 625 cases of people making obscene or offensive comments via the Internet or phone were investigated.

Only 16 were brought to court and just three were convicted.

Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz said it was difficult to prosecute offenders before the amendment to the Act.

“It was especially difficult to prosecute offenders because the servers were located overseas.

“Everything was in a mess,” he said, and denied that the amendment was to curb dissent.

“The Government does not want to stifle anyone. But we don’t want people to slander or threaten others,” Nazri added.